Last Update: 3/17/22

Get Answers to 7 Common Questions About Injury-Related Lost Wage Claims, Including Lost Earning Capacity.

This article discusses recovering lost wages related to accident and injury claims in Florida; injuries resulting from motor vehicle accidents, slip and falls and other common personal injuries.

You will find answers to questions like:

• What are lost wages in Florida?
• How are lost wages Determined?
• How do you claim Lost Wages and what documentation do you need to do so?
• Are lost wages covered under PIP – Fla Stat. 627.736?
• How does a jury calculate lost wages in a Florida injury claim?

Also below, see:

• Lost Wages Claims When You Work On Commission
• Lost Wages When You Don’t Have a Job

Let’s start with the basics; Florida state law provides that injury victims can be reimbursed for their lost wages after an accident. Lost wages are part of an injured party’s personal injury claim when they have been hurt in an accident caused by another person’s negligence.

What Are Lost Wages?

Look in the dictionary, and you can find “lost wages” defined in simple terms as the “potential earnings the insured was unable to receive due to an injury or disability.” [1] However, defining “lost wages” can be complicated, especially when things like commissions are considered. Under Florida Statute 448.01, “wages” are explained as a full day’s work as being a ten (10) hour working day, and all work thereafter being considered overtime for labor law protection purposes. [2]

Quick Tip: You can claim lost overtime pay after an accident as long as you can show a history of these wages.

However, when someone is hurt in an accident, a personal injury claim will include consideration of his or her work details at the time of the event. A personalized, individual wage history (which may include a history of hours worked per day and per week, hourly wages and/or salary, gratuities received like meals and/or tips, bonuses, and may state whether or not the injured party was paid during their absence) will be used to support a claim for compensation to cover those days, weeks, or months that they cannot do their job and earn a living. 

Essentially, your lost wages are the income that you couldn’t earn because you were hurt in an accident. Your “lost wages claim” will be determined by your documented personal financial income records at the time of and before the accident (This may be a problem for some self-employed workers).

Remember, a “lost wages” claim is part of a larger accident claim that includes things like medical expenses, EMS charges, long term care costs, and other “economic damages” that make up an accident claim. (Economic damages are those damages that can be documented with things like invoices or other paperwork, unlike “general (non-economic) damages” like pain and suffering, loss of enjoyment of life, scarring and disfigurement, and mental anguish. Economic damages, once fully documented, are harder to challenge by the opposition and are easier to get paid when a demand is made).

Read: Who Pays For My Damages In A Florida Car Crash?

How Are Lost Wages Determined?

Lost wages are determined using paperwork from your employer that confirms the exact amount of money that you would have received if you had not been hurt in the accident. Other documentation will be needed, as well, to support the amount of time that you were unable to work and to prove that your injuries kept you from doing your job.

For example, if you break your leg and you work as a dancer, then you will not be able to return to your job until your leg is completely healed and the doctor approves you going back to work. However, if you break your leg and you work as a graphic artist, then you may have problems getting to and from your job, but you should be able to sit at your design table and do a full day’s work while you still have a cast on that broken leg and it’s still healing. In this comparison, the dancer’s lost wages claim will be higher than the graphic designer’s lost wages claim because the dancer has a longer time period where she is not able to perform her work.

Additionally, “lost wages” can include a change in your ability to do your job. If you are permanently injured in the accident and cannot do the same type of work as you were doing before the accident, then your “lost wages” claim will expand to include “lost earning capacity.”

In the above example, if the graphic designer lost part of her ability to use her leg in the accident, then there would be some compensation for that loss but it might be paid in a different type of claim than lost wages. However, if the dancer lost partial use of her leg, then she would be able to extend her “lost wages” claim to “lost earning capacity,” since she would no longer be able to dance as she could before the injury.

How Do You Claim Lost Wages? What Documentation Do You Need To Do So?

Lost wage claim documentation includes things like:

Physician’s Written Opinion — a letter from your doctor or treating physician should be included with your claim. This letter should be signed by the treating physician, and it should include his or her professional opinion about the extent of your injuries and how they have compromised your ability to do your job.

The doctor should include supporting documentation for his opinion, too. Details should be provided that include treatments and therapies that you were given (along with dates and times); medications and prescriptions given to you both during and after any hospitalization; long-term therapies, a disability slip, and treatments that have been prescribed for you; and all medical bills related hereto.

Employer’s Confirmation — a letter from your employer that confirms you were employed on the date of the accident and that you have missed work because of your injuries. Most Human Resources departments are well-versed in how to document a lost wages claim for an employee. Most will know to include things like salary details; history of overtime if you are a non-salaried worker; bonus history; and other wage and income information.

What if you are self-employed? Then you may need to provide things like past tax returns and bank statements to confirm your income and revenue streams at the time of the accident.

Other Documents: Police Reports And The Names of All Treatment Facilities — Some insurance companies, when making a lost wage claim, will ask that the claim be accompanied by a police report that documents the accident itself. Of particular import here for purposes of calculating lost wages is the time and date of the accident because this is the starting point for the calculation of the amount of the lost wages.  The insurance company will also want to know all places the injured party received treatment in order to verify the injuries and to see when the injured party went for treatment.

Are Lost Wages Covered Under PIP?

Florida is a “no-fault” insurance state. This means that Florida law requires all drivers to carry “no-fault” automobile insurance coverage that will provide them with a baseline of personal injury insurance coverage if they are in a traffic accident. This coverage is called “Personal Injury Protection” or “PIP.” [3]

In 2013, Florida’s PIP coverage was changed by the Florida Legislature. You need to be aware that PIP will cover the maximum amount of $10,000 as long as your physician confirms that you have an “Emergency Medical Condition“ at your first medical visit, and you must be seen by the doctor within fourteen (14) days of the accident.

Pursuant to Florida Statute 627.736, lost wages are covered under Florida’s PIP law.[3] These lost wages are covered regardless of whether or not you were at fault in causing the crash.

PIP coverage of lost wages is in addition to (1) liability bodily injury coverage on the insurance policy of the person who caused the accident in which you were hurt; and in addition to (2) the coverage provided by your own uninsured / under-insured insurance coverage on your policy in the event that the at-fault driver has insufficient coverage to pay for your injury claim.

According to the PIP Statute, the coverage provided is as follows [5]:

Sixty percent of any loss of gross income and loss of earning capacity per individual from inability to work proximately caused by the injury sustained by the injured person, plus all expenses reasonably incurred in obtaining from others ordinary and necessary services in lieu of those that, but for the injury, the injured person would have performed without income for the benefit of his or her household. All disability benefits payable under this provision must be paid at least every 2 weeks.

Related: Do You Have to Pay Back Your Insurance Company After An Accident Claim?

Lost Wages When You Don’t Have a Job

What some of us may not be aware of is you can be compensated for future lost wages or salary – especially where the injured party has no job or is not working at the time of the accident or crash.

How and Why? Under Florida law, injury victims can be awarded damages for “lost future earning capacity” which is a dollar amount designed to compensate the inured person for their future lost capacity to earn income. It is not a calculation of actual wages or salary figures, so it doesn’t matter that you are unemployed, a student, retired, or a stay-at-home mom or caretaker at the time of the accident. See Loftin v. Wilson.

Lost Earning Capacity is calculated based on a projected amount that is determined to be reasonable through negotiations or by a trier of facts. For example, if your case goes to a jury, the evidence is presented to the jury, by your lawyer, for their determination of what is a reasonable amount to award for lost or diminished ability to work. Thus, in these situations, it’s important to have an experienced advocate on your side with skills in making these arguments to juries.

Limitations and Hurdles For Future Lost Earnings Claims

Two important conditions to meet before you can recover these damages is that you are only able to receive Lost Earnings in the Future if your injury is a permanent one, and If the injury has altered your ability to make a living or earn a wage.

Additionally, some people refer to these claims as awards for the “impairment of earning power,” – and they are estimates. This money is calculated to represent the injured person’s loss of their potential to make a certain income — even if they haven’t achieved that potential and even If they weren’t working at the time of the accident – and the calculation is made by estimating your ability to earn a living (your potential to make money) before the injury as compared to afterward. You are being awarded an amount of money designed to provide justice for what you are estimated to lose in the future because of a permanent injury from the accident.

Lost Wages Claims When You Work On Commission

When you are hurt, you are entitled to be paid for the money that you would have earned but for being hurt. This includes lost wages and lost future earning capacity, if applicable. This is true no matter how you are paid (salary, wage, commission) and your job title (employee, independent contractor, self-employed).

Injury victims who are paid through their individual effort often are paid different amounts of money over time. In Florida,  courts have held that commissions fall under the term “wages” (See Waymire v. Florida Industrial Commission,  Jerry Miller v. Ben’s Service Station, Inc. and Gulf Insurance Company and Florida Statute 440.02 relating to worker’s compensation claims) For example, real estate agents are paid on commission and get periodic payments as they sell houses or condos. Similarly, car sales personnel work on commission, and they get paid a percentage of each car they sell.

If they are injured in an accident, then how do they prove up their lost wages claim?

Proof of Commissions as Lost Wages

When someone working on commission is injured, their lost wages claims include quite a bit more paperwork than someone who can provide a series of pay stubs or photocopies of past biweekly paychecks. Commissions must be shown over time so that an average can be calculated, and this can mean lots of investigation and effort to get all of those documents together.

Lost Wages Commission Documents can include:

• Past income tax returns
• Past commission checks over the past year or two
• Contracts between the victim and the company (or companies) offering a percentage to them as commission
• Bank statements showing deposits of commission checks

These will need to be provided along with standard lost wages evidence such as a written doctor’s opinion on your injuries and how long you have been and will be unable to work; and the accident’s police report.

Defense Challenges to Commission Based Lost Wage Claims

It is important to be diligent and precise in documenting a lost wage claim where the wages are based upon commission income. Insurance companies and defense lawyers may be suspicious of these claims and will most likely challenge, through legal discovery (i.e. depositions, requests for production of documents and interrogatories which require answers to specific questions), a claim as being exaggerated or even fraudulent.

How Does A Jury Calculate Lost Wages In A Florida Injury Claim?

There are times when demand letters and attempts at negotiating a reasonable settlement after an accident just don’t work. In this situation, a lawsuit must be filed in order to get the responsible parties to take responsibility for the harm that has been done to the injury victim. Filing a lawsuit is a big step; however, there are several steps in the litigation process where the settlement of a claim can still occur.

If the other side remains stubborn or unreasonable, the case may proceed to trial.  Then, the decision of compensation will be given to the jury, as fact-finder, to make a determination of what they believe is fair and just. Here, the evidence is provided at the trial of the victim’s injuries, long-term prognosis, wage history, and other elements of his lost wages claim and other elements of his overall injury claim.

The same documentation and support for lost wages discussed above is provided for the jury’s consideration. In some cases, expert testimony in the form of medical experts or experts in particular kinds of occupational skills may also be involved as added support for the plaintiff’s claim.

For instance, in the above example, a professional dancer might testify as an expert witness for the injury victim, explaining to the jury the number of years in the career of most professional dancers or how the full use of both legs are imperative for the type of dancing the injury victim did on the job before the accident. This would help support the victim’s lost wages in future earning capacity claim.

Once all the evidence has been presented to the jury, which may or may not include the victim testifying on the witness stand about things like his/her inability to work a full day or change in his/her ability to do the same kind of work due to the injuries sustained in the accident, then the jury will be sent back to the jury room to deliberate and decide what amount the injured person rightfully should receive.

However, before the jury is sent to deliberate, the judge will instruct them with specific “jury instructions” on how to calculate these damages. Using the instructions provided by the judge, the jury will then tally an amount to be awarded as lost wages, both for the past as well as any future wages in the form of lost earning capacity, using the evidence provided during the trial.

Conclusion

In Florida, if you are the victim of an accident and suffer bodily injury, then Florida law allows you to recover several types of compensation, including lost wages. Lost wages can include past wages as well as future lost wages due to a change in your ability to perform the work you did prior to the injury or accident. Your lost wages may be paid from a variety of sources, including your own insurance coverage (PIP, etc.).

Not having the ability to pay one’s bills as they come due can be extremely stressful and one of the most frustrating parts of an accident’s aftermath. Luckily, Florida law provides remedies to help injury victims get reimbursed for their lost wages after an accident so that justice may prevail.

What Should You Do?

A good piece of advice if you intend to pursue a lost wage claim, is to speak with an experienced personal injury lawyer to learn about some of the issues that can arise with these claims, including the type of evidence needed to prove a claim and the type and amount of damages you can recover. Most personal injury lawyers, like Alan Sackrin, will offer a free initial consultation (over the phone or in-person) to answer your questions.

NOW WATCH

When aren’t you able to recover lost wages in a car accident or slip and fall case?

Related: Do You Still Have An Injury Claim If You Delayed Seeking Medical Attention?

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Do you have questions or comments? Then please feel free to send Alan an email or call him now at (954) 458-8655.
 

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Endnotes

[1] Intentionally Omitted

[2] Florida Statute 448.01 (2019)

[3], [4] Florida Statute 627.736 (2019)

[5] Florida Statute 627.736 6(b)